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Resource Now Group, Inc. v. O'Shea

United States District Court, E.D. Texas, Sherman Division

January 17, 2018

RESOURCE NOW GROUP, INC.
v.
HEATHER O'SHEA

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff's Motion to Remand (Dkt. #6). Having considered the relevant pleadings, the Court is of the opinion that the Motion to Remand should be denied.

         BACKGROUND

         In February 2017, Plaintiff Research Now Group, Inc. (“Research Now”) employed Heather O'Shea (“O'Shea”) as the Vice President of Ad & Audience Research based in New York. In connection with her employment, on February 27, 2017, O'Shea entered into a Confidentiality, Non-Solicitation, Non-Completion and Intellectual Property Assignment Agreement (the “Agreement”) with Research Now. On or around June 2017, O'Shea accepted new employment as a Senior Vice President of Client Services for Millward Brown Digital's Media and Agency division.

         On July 31, 2017, Research Now filed its Original Petition against O'Shea in the 429th Judicial District Court of Collin County, Texas (Dkt. #3), asserting claims for breach of contract and violations of the Texas Uniform Trade Secrets Act, seeking to enjoin O'Shea from directly competing with it.

         On October 10, 2017, O'Shea filed a Notice of Removal in this Court based on diversity jurisdiction (Dkt. #1 at p. 3). On October 30, 2017, Research Now filed a Motion to Remand (Dkt. #6), asserting that the parties consented to a mandatory forum-selection clause in the Agreement, which provides that a Texas state court has jurisdiction over any disputes arising under the Agreement. The Agreement states in pertinent part:

This Agreements shall be subject to the laws of the State of Texas, exclusive of its choice of law provisions, and the courts of the State of Texas shall have jurisdiction over any and all disputes arising from or pertaining to this Agreement to the extent consistent with Section 7.8.

(Dkt. #7 at ¶ 7.7).

         On November 13, 2017, O'Shea filed a response (Dkt. #9). On November 20, 2017, Research Now filed a reply (Dkt. #10).

         LEGAL STANDARD

         Title 28, Section 1441 of the U.S.C., the general removal statute, allows a defendant to remove a case to the federal district court for the district and division within which the action is pending, provided that the district court possesses original jurisdiction. 28 U.S.C. § 1441(a). A federal district court possesses original jurisdiction if the parties could have initially filed in federal court pursuant to 28 U.S.C. §§ 1331-1334. Title 28, Section 1332(a) of the U.S.C. confers jurisdiction on district courts over civil actions between citizens of different states where the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a). For jurisdiction to exist under Section 1332, diversity must be complete in that no plaintiff and no defendant may be citizens of the same state. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). As a general rule, the burden of proving that federal jurisdiction exists falls on the removing party. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

         Section 1446 establishes the procedures by which a defendant may remove a suit filed in state court to federal court. See 28 U.S.C. § 1446. A notice of removal must normally be filed within thirty (30) days after the defendant receives the initial pleading setting forth the claim for relief upon which the action is based, or within thirty (30) days of service of summons if the state's rules of procedure do not require the defendant to be served, whichever period is shorter. 28 U.S.C. § 1446(b). Similarly, 28 U.S.C. § 1447 establishes the procedures following removal. Specifically, Section 1447 provides that “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . .” 28 U.S.C. § 1447(c). In contrast, if a court finds that it lacks subject matter jurisdiction, the court must remand the case, even if the thirty (30) days have passed. Id.

         ANALYSIS

         O'Shea contends that the forum-selection clause is unenforceable because the Agreement was never fully executed. She reasons that the parties intended the Agreement to require both parties' signatures as a condition precedent to its enforceability, and because Research Now never signed the Agreement, the Agreement was never fully executed. In the ...


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